By Julie M. Bernstein

Copyright notice

The regulation of indecent language on the airwaves is a fairly recent phenomenon. Although the Federal Communications Commission (hereafter referred to as "FCC" or "Commission") has possessed the power to restrict indecent and obscene broadcast material since the passage of the Communications Act of 1934, little activity was generated in this area until the 1960's. Since then, the FCC and the courts have wrestled with many issues pertaining to broadcast regulation. Three major, recurring themes are: the distinction between indecency and obscenity; the question of the uniqueness of the characteristics of broadcast media, as opposed to print media; and the government's interest in protecting minors from indecent language.

This report will focus on regulation of radio communications because most of the indecency legislation has arisen from that medium. Public (non-cable) television, while getting its share of complaints about excessive violence and indecent programming, is more immune to legal difficulties in this area because there simply isn't currently a great deal of objectionable language uttered on television. Public television broadcasters have to cater to more general audiences than radio broadcasters, and thus must maintain a level of morality that is acceptable to more sensitive tastes in order to stay alive in the ratings game. Although the added visual element affords even more possibilities for offending the public with shows of indecency, controversies over issues such as nudity and the depiction of sexual situations have mostly concerned cable transmissions, which are outside the scope of this report.

The FCC is an independent federal regulatory agency, established by the Federal Communications Act of 1934. This Act charges the FCC with insuring that broadcasting serve the "public convenience, interest, or necessity," a policy duplicated from the Federal Radio Act of 1927, the predecessor to the Federal Communications Act.1 The FCC has the authority to develop specific rules and regulations for the administration of the Act, and the agency's decisions carry the force of law.2 The enforcement powers of the FCC include giving reprimands, warnings, or fines to stations, renewing licenses for shorter than usual terms, or, in more extreme cases, revoking or not renewing a license.3 Stations have the right to appeal FCC rulings to the judicial system.

The FCC's power to regulate indecent language comes from the U.S. Criminal Code, Title 18, Section 1464 (henceforth referred to as 18 U.S.C. 1464). The statute was originally in Section 503(b) of the Communications Act and was moved to the Criminal Code in 1948. The text is the following:

Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.

As this statute prohibits both obscene and indecent language, it may encompass a wide variety of programming. The efforts of the FCC, the courts, and broadcasting licensees to determine the scope of this statute's authority will be explored through a case-by-case analysis.

In re WDKD, Palmetto Broadcasting Co.
33 FCC 265  December 1961

Charlie Walker, a popular radio personality in Kingstree, South Carolina, fell under FCC investigation for broadcasting material that "was allegedly coarse, vulgar, suggestive, and susceptible of indecent double meaning."4 Walker was a disk jockey and announcer on a number of programs, during which he often told "raunchy" stories and invented new names for local towns, such as "Greasy Thrill" for Greeleyville and "Monkey's Corner's" for Monk's Corners. He was also accused of saying "let it all hang out" on several occasions.5 The FCC found this material to be "obscene and indecent on its face"6 and thus in violation of 18 U.S.C. 1464.

Station manager E.G. Robinson claimed that the material wasn't obscene under the Roth v. U.S. (354 U.S. 476, 1957) test, which states that expression is obscene if, in part, the average person applying contemporary community standards finds the dominant theme of the material to appeal to prurient interest. The FCC replied by saying that the material could be found obscene under Roth, because of the "common vein of thinly veiled references to the procreatory or excretory functions of man or beast" that the average man in the local community would find highly objectionable.7 However, the FCC cautioned that Roth was not the appropriate test of obscenity in this case, for several reasons.

The Commission maintained that Roth specifically dealt with the mailing of obscene material, and that the Supreme Court did not intend the ruling to have a universal application.8 As they claim in most upcoming cases concerning indecent language, the FCC finds that the broadcast media are unique. Radio and television are uniquely accessible to all, "at the flick of a switch to young and old alike, to the sensitive and the indifferent, to the sophisticated and the credulous."9 The Commission therefore sees a duty to protect "those of highly developed sensibilities"10 from the shock of being exposed to offensive language. The material concerned in Roth was not so pervasive and easily available, for the physical characteristics of the print media make it easier to restrict.

The FCC next adopted a disturbing stance regarding the broadcast of works which may have serious merit. They claimed that the very nature of the broadcast media separates radio and television programming from printed matter. Therefore, even works such as Ulysses or Lady Chatterly's Lover which would not be found obscene under Roth, would be questionable if the "more lurid details" were dramatized and aired on television.11 This observation does not seem particularly applicable to the radio medium, however. The Commission stated that context should not always determine whether a work is obscene, for "brief injections of erotica, pornography, or smut are enough to seriously prejudice, if not destroy, the general utility of radio and television."12 In the Walker case, the FCC found that the objectionable material was hardly isolated, but broadcast repeatedly over a period of several years. Therefore, the FCC refused to renew the license of the offending station.

It should be noted that this particular FCC case was decided over a decade before the Supreme Court decision in Miller v. California (413 U.S. 15, 1973), which changed the Roth test by adding the stipulation that challenged works must be examined to determine whether they have any serious literary, artistic, political, or scientific value (the "SLAPS" test). Even after the Miller decision, however, the FCC continued to label some material indecent even if it possessed such merit. It would appear that the justification for the Commission's action would be that Miller specifically concerns obscene language, whereas 18 U.S.C. 1464 also bars indecent language, which apparently need not be subject to the Miller criteria. However, the FCC has failed to draw up safeguards similar to those in Miller to protect language that has merit but may be offensive to some.

In re Pacifica Foundation
36 FCC 147  January 1964

In the first of a rather lengthy series of cases involving radio stations licensed by the Pacifica Foundation, the FCC responded to complaints about several programs that aired on Pacifica-licensed stations in 1959 and 1963. These programs included a broadcast of The Zoo Story, a play by Edward Albee; a discussion of homosexual attitudes and problems; and readings of original works by several poets and authors.13 The complainants charged that these programs were offensive or "filthy" in nature.

In contrast to most of its later rulings, the FCC disagreed with the charges of indecency, deciding that most of the broadcasts served the needs and interests of the listening public. The Commission showed peculiar deference to Pacifica in this instance by accepting without argument the licensee's judgment that the material was appropriate for its listening audience.14 Here, the FCC appears to define indecency primarily by the contemporary standards of the local community, although this definition of "community standards" will be broadened in later decisions. The two cases in which more offensive material was aired were forgiven as "two isolated errors," which the stations themselves admitted to, that should not require so serious a penalty as the revocation of a license.15

The FCC also expressed appreciation that the programming was broadcast after 10 p.m., when children were less likely to be in the audience. The relegation of adult-oriented broadcasts to the late hours to protect children is a major concern of the FCC. Ten p.m. was seen to be a reasonable time to begin allowing the broadcast of indecent material until the late 1980s, as will be seen later in this report.

The Commission took no action against the Palmetto stations for the broadcasts in question. They recognized that provocative programming may offend some listeners, but noted that these listeners did not have the unequivocal right to censor such broadcasts.

In re WUHY-FM, Eastern Educational Radio
24 FCC 2d 408  April 1970

At 10 p.m. on January 4, 1970, WUHY-FM of Philadelphia, PA, broadcast an interview with Jerry Garcia, a member of the rock group The Grateful Dead. Garcia was interviewed on the weekly program Cycle II, an underground-oriented show concerning avant-garde artistic expression. Garcia spoke on such topics as ecology, music, philosophy and interpersonal relations, and frequently interspersed his comments with the words "shit" and "fuck"; representative expressions included: "Shit man," "All that shit," "Every fuckin' year," etc. (The FCC chose to represent the words as "s--t" and "f--k" in their report.)

The FCC had been monitoring the broadcast of the Cycle II program following several complaints concerning the material aired on this station during the 10 p.m. time slot. Therefore, even though this particular broadcast received no complaints, the FCC reviewed its contents. In April, 1970, the Commission found that the speech used by Garcia "has no redeeming social value, and is patently offensive by contemporary community standards,"16 and was therefore indecent and in violation of 18 U.S.C. 1464.

The FCC determined that they had the authority to prevent the future broadcast of such expletives to protect the public interest. They noted that the widespread use of such language on the radio would "undermine the usefulness of radio to millions" of people, because listeners would never know whether or not they or their children would hear "vile expressions" whenever they tuned in to a station. The FCC claimed that these listeners would severely curtail their radio usage because of the possibility of hearing such expressions.17

The above rationale for regulation is rooted in the argument that radio is a distinctive medium which is uniquely pervasive and particularly accessible to children. While such media as books and magazines can be shelved in protected areas or otherwise held off-limits to unintended audiences (such as children), radio has no such available safeguards. Anyone can tune in at any time during the day, and supposedly be assaulted by a volley of objectionable words.

The FCC argument holds that if Garcia can preface his statements with "shit" or "fuck," then nothing is stopping any radio announcer or DJ from doing the same, and no listener will be safe from this language. However, their contention that it is a real possibility that news announcers would routinely insert the phrase "mother-fucking" into their broadcasts without prohibitory regulation is untenable. Radio stations must be sensitive to the needs and wants of their audience members to stay alive in the ratings game, and shows that frequently used expletives in unnecessary settings, such as news broadcasts, would likely lose listenership. The market, not the FCC, should decide which shows to patronize based on the audience's assessment of the appropriateness of the language used. It is ironic that the FCC could claim that this language was "patently offensive by contemporary community standards" without having received any complaints about the broadcast in question.

The FCC also decided that the words had "no redeeming social value" because they were solely gratuitous expressions which could have been replaced with other words "without stifling in the slightest any thought which the person wishes to convey."18 This is analogous to telling Paul Cohen that he should have written the words "Avoid the Draft" rather than "Fuck the Draft" on his jacket. As Justice Harlan pointed out in Cohen v. California (403 U.S. 15, 1971), "much linguistic expression serves a dual communicative function.... words are often chosen as much for their emotive as their cognitive force."19 Whether or not Garcia could have sanitized his speech and still conveyed the same essential message is a subjective call, but one that the FCC should not make indiscriminately.

The FCC decision was indiscriminate in its approach because it ignored the context of the program. While the issues discussed by Garcia were clearly not indecent, the FCC refused to take this fact into account because they felt that the threat to the public interest upon hearing such gratuitous language was too great. This view continued to frame indecency in terms of the public interest standard enunciated in the Pacifica decision above, though the composition of the local audience did not seem to be a factor in this case. Whether or not the topics of discussions had any redeeming social value, the incidental expressions that peppered the interview apparently negated any worth that may have been found. The FCC therefore fined the station $100.

In re WGLD-FM, Sonderling Broadcasting Corporation
41 FCC 2d 919  April 1973

Station WGLD-FM in Oak Park, IL, licensed by Sonderling Broadcasting Corporation, aired a call-in talk show entitled Femme Forum. This program followed a "topless radio" format, popular in the 1970s, in which listeners called in and participated in the discussion of mainly sexual subjects. On February 21 and 23, 1973, the programs dealt with oral sex, the latter show featuring explicit descriptions of oral sex experiences. The FCC discovered these programs as part of an inquiry, in response to increasing complaints from listeners, into "alleged broadcasts and cablecasts of obscene, indecent or profane material by licensees, permittees or cable systems."20

The FCC recognized the station's right to present material that may be provocative or offensive to some listeners. They said that sex was not a forbidden subject on the airwaves; however, the interviewer in this case "could readily moderate his handling of the subject matter so as to conform to the basic statutory standards."21

As in the WUHY-FM case, the Commission found that the material aired had no redeeming social value. They decried the "titillating, pandering exploitation of sexual materials" on this program and on topless radio shows in general, which were not geared towards a serious discussion of sexual matters, but towards gaining large audiences.22

According to the Commission, this material not only violated 18 U.S.C. 1464 because it was indecent, but could have been classified as legally obscene as well. The Supreme Court, in Roth, defined obscenity as "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest."23 The FCC felt that the titillating and pandering nature of the Femme Forum program indicated that it was intended to appeal to prurient interests. The Roth test of obscenity cited above had since been modified by Miller, but the stipulation that the material must appeal to prurient interest remained the same. The added stipulation that material lacking serious merit could be prohibited (rather than prohibiting only material that utterly lacked social value) is irrelevant, for the FCC felt the program in question had no merit whatsoever, and would thus be obscene under either test.

In justifying the restriction of such indecent material, the Commission again relied on the theory of the unique nature of radio, "A medium designed to be received and sampled by millions... without regard to age, background or degree of sophistication."24 Thus, the FCC again found it necessary to impose paternalistic safeguards against the possibility that unwitting listeners would overhear objectionable language. Sonderling was fined $2000 for the violation of 18 U.S.C. 1464.

Illinois Citizens Committee for Broadcasting v. FCC
515 F.2d 397  April 1975

Sonderling did not appeal the fine levied by the FCC; although the Corporation disagreed with the Commission's ruling, they decided to pay the fine to avoid the high court costs associated with an appeal. All organizations reviewed by the FCC may appeal any decisions to the court system, and the Commission had in fact encouraged judicial consideration in the WGLD-FM case, considering the sensitivity of the subject matter. However, as in this case, the costs involved often dampen the initiative of a station intending to take the judicial route.

Despite Sonderling's decision to pay the fine, a citizens' group and a civil liberties group challenged the ruling and petitioned for reconsideration of the notice of apparent liability that the FCC had served Sonderling. The petitioners alleged that the decision unconstitutionally deprived the Chicago-area audience of listening alternatives.25

The D.C. Circuit Court of Appeals agreed with the FCC's assessment that the material on Femme Forum was presented in a titillating and pandering manner for the sole purpose of commercial exploitation. This "pandering" was impermissible under the rationale of Ginzburg v. United States (383 U.S. 463, 1966), which sustained the conviction of a publisher who employed suggestive advertising to appeal to the erotic interest of his customers and promote the sale of his publications.26 It is interesting that the D.C. Court chose to apply a ruling from a case involving mailings to a case involving radio transmissions, especially in light of the great effort, by both the FCC and the courts, to distinguish radio from other media in terms of accessibility and pervasiveness. This holding is also particularly ironic since the Commission's disowned the Roth rationale in Palmetto specifically because Roth dealt with mailings rather than broadcasting. Nevertheless, the D.C. Court here held that the Ginzburg ruling was applicable because of the commercial interests involved in both cases.

The D.C. Court also noted that the programs were broadcast between the hours of 10 a.m. and 3 p.m., times when children may have been in the radio audience.27 In all of the cases involving broadcast regulations where the issue of when children are in the audience arises, as it inevitably does, new justifications are constantly manufactured for further curtailing the hours during which indecent material may be aired. While in most of the cases it is taken for granted that daytime hours (broadly, before 6 p.m.) are off-limits for indecent broadcast because of the heightened risk of young listeners, the Sonderling case is one of the few that actually addresses the daytime audience composition, and it does so quite poorly. The D.C. Court stated that children may be in the audience between 10 a.m. and 3 p.m. because they may, for example, be home for lunch or home ill from school.28 Certainly a much better case could be made for restricting indecent programming after school hours, when the average school-age child would be home, rather than focusing the case on the few exceptions that may be present during daytime hours. To sanitize the airwaves to the point where no child could possibly be in the audience would result in the imposition of a twenty-four hour ban. (Eventually, such a ban was, in fact, imposed, and this development will be treated later in this report.)

The D.C. Court addressed the FCC's finding of the contested material obscene under the standards of Roth and Memoirs v. Massachusetts (383 U.S. 413, 1966) The D.C. Court noted, as mentioned above, that the Miller standard replaced the above tests, rejecting the rule that material must be "utterly without redeeming social value" to be considered obscene. However, the Miller standard also stated that obscene material must "depict or describe patently offensive 'hardcore' sexual conduct specifically defined by the regulating state law."29 The Sonderling Court determined that the material broadcast on Femme Forum was not utterly lacking in redeeming social value, and was thus not obscene under the Roth and Memoirs standards applied by the FCC.30 Nonetheless, the D.C. Court chose to apply the Miller standard, under which the broadcast could still be found obscene, as it made "no literary, artistic, political, or scientific contribution."31 Additionally, even under the Memoirs test, Sonderling was still guilty of appealing to the prurient interest.32

The D.C. Court also rejected the argument that the broadcast should have been considered as a whole, since the FCC's determination was based only on brief outtakes containing offensive material. According to the D.C. Court, radio broadcasting is episodic in nature; an audience member could tune in or out at any time, only listening to brief portions of the program.33 This approach, yet another attempt to distinguish broadcasting from other media, ignores the fact that a magazine or book could be similarly handled if the reader focused only on sections that caught the attention. The history of censorship is rife with examples of books being banned for isolated instances of objectionable material, without reference to the work as a whole. Nonetheless, the D.C. Court here, again relying on the Ginzburg rationale, held that "the pervasive pandering approach here makes the broadcast pornographic even though some of its elements may be unoffensive."34 The D.C. Court therefore affirmed the FCC's ruling.

FCC v. Pacifica Foundation
438 U.S. 726  1978

The conflict over the role of the FCC in broadcast regulation of indecency finally reached the Supreme Court in 1978. The controversy began with the October, 1973 broadcast of a monologue by George Carlin on the Pacifica-owned station WBAI-FM in New York City. The monologue was aired during a program discussing current attitudes about language, and the topic of Carlin's recording - ironically - was seven words that you could not say on the public airwaves. Carlin repeated the words - shit, piss, fuck, cunt, cocksucker, motherfucker and tits - over and over again throughout the monologue, poking fun at verbal taboos in society.

A concerned listener heard the program while driving with his young son one afternoon, and he complained to the FCC. Despite the fact that this was the only complaint received about the broadcast, the FCC warned the station not to air such material again. Although they issued no fines or criminal charges, the letter of warning would become a part of the station's permanent file - a potentially important consideration when license renewal time came around.

The station appealed the decision. The D.C. Circuit Court agreed with the station's position and reversed the decision.35 However, the Supreme Court reversed the Circuit Court's finding and reinstated the FCC ruling by a vote of five to four. In the majority decision, Justice John Paul Stevens found that the FCC had the power to regulate the broadcast of obscene, indecent, or profane language.36 A prohibition against censorship in Section 326 of the Communication Act prevented the Commission from editing material in advance of broadcasts, but did not forbid the FCC from reviewing the content of completed broadcasts.37

Stevens determined that the rule against the broadcast of offensive language covered more than just the obscene; it also concerned indecent language. The Court described indecency as speech that is "patently offensive as measured by contemporary community standards for the broadcast medium."38 Both content and context were necessary to determine whether material was obscene, and in Carlin's case the language used would be classified as "worthless speech" under the dichotomy established in Chaplinsky v. New Hampshire (315 U.S. 568, 1942) which distinguished between speech that was worthwhile as a step to truth and speech that was of little value to that goal.39 The "worthless" category included the lewd, the obscene, and the profane, and apparently the Court felt that Carlin's words would fall under one of these categories - most likely the profane. An exact definition of "profanity" is difficult to determine from the case record, for most of the challenged programs have been accused of violating either the "indecent" or the "obscene" provisions of 18 U.S.C. 1464. Profane language would seem to encompass primarily expletives such as "shit" or "fuck."

The Court emphasized that this decision was a narrow holding, tailored specifically to the facts of the case. Carlin's words could be protected in other contexts.40 However, the broadcast media is uniquely pervasive and uniquely accessible to children. The audience constantly tunes in and out and may not hear a prior warning that offensive language will be aired. Switching off the receiver is not a remedy because the damage has already been done.41 The composition of the audience during the time of day that the program was aired was a factor in this decision; children may have been present (as was the original complainant's son) during the afternoon hours of the broadcast. The Court therefore reinstated the FCC's warning.

In the dissenting opinion, Justice William Brennan criticized the majority's contention that the radio was an intrusive medium. He noted that individuals voluntarily own and use radios, and may easily turn them off if they are offended by broadcast material.42 The Constitution protects the rights of both the sender and receiver of communications that many, including the FCC, may find offensive, and this ruling denies the rights of listeners who wish to hear such broadcasts.43

Brennan also challenged the child-protection rationale of the majority decision. He recognized that children may be sheltered from offensive language by "variable obscenity" standards which assess prurient appeal with reference to the sexual interests of minors. However, these standards are only applicable when the material is significantly erotic, which Carlin's material wasn't.44 By censoring such language, the FCC may well reduce what is acceptable for adults to what is acceptable for children.45 This portion of Brennan's analysis may correctly explain variable obscenity laws, but it does not address the fact that the words were considered indecent, not obscene, and could therefore be construed to violate 18 U.S.C. 1464 regardless of whether or not minors' interests were at stake.

Brennan also attacked the majority's assertions that Carlin could have used alternative wording, and that Carlin fans could gain access to his material through media other than the radio, by purchasing his records or attending his performances. Brennan countered the first argument by noting that language has a dual communicative function; a speaker's choice of words cannot be divorced from his ideas.46 This concept, originally stated in Cohen, recalls the WUHY-FM case, in which the FCC incorrectly assumed that Garcia could have used less objectionable language without altering his message. Brennan condemned the majority for being seemingly unable to realize that not everyone shared their "fragile sensibilities" and "acute ethnocentric myopia."47

In re KPFK-FM, Pacifica Foundation, Inc.
2 FCC Rcd 2698

In re KCSB-FM, Regents of the University of California
2 FCC Rcd 2703

In re WYSP-FM, Infinity Broadcasting Corporation of PA 
2 FCC Rcd 2705
These three cases were all decided by the FCC on April 29, 1987, and a Public Notice concerning issues common to all three was issued that same day. In these proceedings, the FCC developed new standards for the enforcement of indecency and warned the above stations that their broadcasts would violate these new standards.

In the first case, yet another concerning the Pacifica Foundation, the FCC received a complaint about a program called I Am Are You? that featured excerpts from the play The Jerker. These excerpts, broadcast after 10 p.m. on August 31, 1986, contained explicit passages describing sexual and excretory functions. The show was preceded by a warning that the content may be objectionable to some listeners. While not finding the station in violation of law under current FCC standards, the Commission took the opportunity to set forth new policies concerning the definition of indecency and the appropriate time to broadcast indecent material.

The FCC decided that it was neither necessary nor practical to limit the application of the ruling established in FCC v. Pacifica to solely cases involving the deliberate, repeated usage of Carlin's "seven dirty words." Any speech describing or depicting sexual or excretory functions should be examined in context to determine whether it is "patently offensive under contemporary community standards applicable to the broadcast medium."48 Such standards may differ for broadcast media due to the easier accessibility of broadcast material as compared to printed material. Broadcasting is especially accessible to children, and evidence indicates that there is a reasonable risk that children may still be in the listening audience after 10 p.m. Therefore, the prior standard that allowed indecent material to be broadcast after 10 p.m. should no longer be used.49

The Commission determined that the material broadcast on KPFK-FM was patently offensive, and therefore indecent, regardless of the context. The station had argued that the explicit passages describing homosexual activity were part of a play about AIDS, but the FCC insisted that this material was still patently offensive by contemporary community standards.50 The Commission also felt that the broadcast may be criminally obscene under the Miller test, and therefore forwarded the complaint to the Department of Justice for consideration. However, the FCC only issued a warning to all broadcast licensees that such material would be actionable in the future even if it were broadcast at 10 p.m.51

The second case concerned the July, 1986 broadcast of a song entitled Makin' Bacon, which contained sexually suggestive lyrics. Although the words themselves were not profane or obscene for the most part, "dick" being the only word that could be readily classified as indecent (and this term was used only once), the FCC found that the innuendo was "rendered explicit by surrounding explicit references" concerning sexual organs and activities, and was thus patently offensive by "contemporary community standards for the broadcast medium."52 The Commission repeated its stipulations that indecency must be determined by context and that it must be relegated to a time when children are not likely to be in the audience.53 The station was given the same warning as Pacifica.

The third case involved a morning talk show by WYSP-FM radio personality Howard Stern. Broadcasts of this program during the fall of 1986 were found to be replete with references to sexual and excretory matters, made "in a pandering and titillating fashion."54 Although much of the material was innuendo and double entendre, the surrounding references were deemed to render the material explicit. The context of the program only aggravated the patent offensiveness since the show was geared toward titillation. It was also broadcast in the morning, a time of day where there was a reasonable risk that children were in the audience. The station therefore received the same warning as Pacifica and the University of California Regents.

On the same day as these three cases were decided, the FCC issued a Public Notice of "New Indecency Enforcement Standards to be Applied to All Broadcast and Amateur Radio Licensees."55 This Notice announced that the Commission would continue to use the definition of indecency that was upheld in FCC v. Pacifica: "language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." However, the application of this standard would not be limited to cases involving the repeated use of the expletives used by Carlin. Additionally, material broadcast after 10 p.m. would no longer be automatically insulated from action under 18 U.S.C. 1464. Material would be channeled to a time when there was not a reasonable risk that children would be in the audience. The FCC considered this channeling to be a reasonable time, place and manner restriction which was consistent with First Amendment rulings concerning printed media.56

A group of petitioners, representing commercial and public broadcasting networks and associations, program suppliers, and public interest groups,57 asked the FCC to clarify and reconsider its position stated in the Public Notice. The Commission replied in December, 1987, with a Reconsideration Order, which clarified and expanded upon the new regulations. They stated that the determination of whether or not material was patently offensive must be made on a case-by-case basis. This same method was used by the courts to assess obscenity, so the case-by-case determination was therefore not unconstitutionally vague.58

The FCC differed sharply from the courts, however, in their other approaches to classifying indecent material. They stated that merit is only one of several variables to be considered, and that a program that has serious literary, artisitic, political, or scientific value may still be patently offensive and thus found indecent under 18 U.S.C. 1464. This statement contrasts with the SLAPS test for obscenity introduced in Miller. Also, the Commission determined that "contemporary community standards" were not based on local standards, but by the broader standard of the "average broadcast viewer or listener."59 This standard also differs from Miller, which considered community standards to be determined by the state or local area. The Reconsideration Order also established midnight as the new time after which indecent, "but non-obscene," programming could be broadcast without a reasonable risk of exposure to children.60

Action for Children's Television ("ACT"), et.al., v. FCC 
852 F2d 1332  July 1988
The petitioners who questioned the Public Notice were somewhat less than satisfied with the FCC's statement in the Reconsideration Order, so they took their grievances to court. The D.C. Circuit Court of Appeals decided that the FCC's definition of indecent broadcast material was not constitutionally overbroad, but also determined that the Commission did not present sufficient evidence to warrant channelling such material to after midnight.

The D.C. Court noted that the FCC's generic definition of indecency, requiring judgment on a case-by-case basis, was virtually the same definition as the one articulated by the Supreme Court in FCC v. Pacifica. The D.C. Court inferred from that decision that the Supreme Court did not consider "indecency" to be an overly vague term, as the petitioners in ACT v. FCC had challenged. The D.C. Court also agreed with the FCC's statement that serious merit alone did not necessarily immunize indecent material from channeling regulations.61

The D.C. Court recognized the necessity of channeling indecent material to protect children, but ruled that the Commission did not present enough evidence to warrant the new midnight time restriction.62 The Court also disagreed with the FCC's assertion that channeling was a valid time, place, and manner regulation, for the Court observed that such regulations must be content-neutral. Channeling of indecent material was clearly a content-based regulation. Such regulations may be sustained, however, if there is a compelling government interest and the regulations are carefully tailored. The Court ruled that the government's interest in safeguarding the well-being of minors was sufficiently compelling to allow channeling, but a reasonable "safe harbor" rule must be adopted.63

In light of these considerations, the D.C. Court vacated and remanded the decisions in Pacifica and Regents of the University of California for reconsideration. The decision in Infinity was affirmed due to the fact that Stern's talk show was broadcast during the morning hours, when there was a reasonable risk, even under the old indecency standard, that children would be in the audience.

Before the FCC was able to determine anew what a reasonable "safe harbor" would be, Congress did the work for them. On October 1, 1988, President Reagan signed a law which contained appropriations for the Commission for the fiscal year 1989. The legislation contained the following rider:

By Jan. 31, 1989, the Federal Communications Commission shall promulgate regulations in accordance with Section 1464, Title 18, United States Code, to enforce the provisions of such section on a 24 hour per day basis.64

This amendment to the appropriations bill was sponsored by Senator Jesse Helms, who insisted that 18 U.S.C. 1464 did not specify a time that was appropriate for indecency; it banned indecent material outright. He stated: "This filth, obviously... has no business being broadcast on the public airwaves, let alone being sanctioned by the FCC between midnight and 6 a.m... Garbage is garbage, no matter what the time of day may be."65

Given this directive, the FCC had no choice but to enforce the twenty-four hour ban mandated by Congress.

Sable Communications of California, Inc., v. FCC
492 U.S. 115  June, 1989

In June of 1989 the Supreme Court decided a case which, while not specifically related to the broadcasting of indecent material, contained holdings that opened the way for the FCC to develop a record determining the constitutionality of the twenty-four hour ban. This decision affirmed a District Court ruling which held that an outright ban on indecent interstate commercial telephone messages was unconstitutional, although obscene messages may be prohibited. The decision also held that the government may regulate indecent speech if the regulation promotes a compelling government interest and is narrowly tailored to serve that interest.66

In this case, Sable Communications challenged a Congressional amendment to the Communications Act that prohibited indecent as well as obscene messages directed to any person, regardless of age.67 The Court found that there was "no constitutional barrier to the ban on obscene dial-a-porn recordings," because obscene speech is not protected by the First Amendment.68 However, the Court also noted that "Sexual expression which is indecent but not obscene is protected by the First Amendment." Such material could still be regulated, however, "in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." The interest of protecting the well-being of minors was found to be sufficiently compelling, if the regulations were narrowly tailored to meet that end. The Court determined that the amendment in question was not sufficiently narrowly drawn to serve that purpose, and it therefore violated the First Amendment.69

Action for Children's Television v. FCC ("ACT II")
No. 88-1916 D.C. Cir.  Sept. 13, 1989

Based on the holdings in Sable, the D.C. Circuit Court issued a stay on the twenty-four hour obscenity ban on September 13, 1989. The D.C. Court's remand order directed the FCC to conduct a "full and fair hearing" on the constitutionality of the ban. The FCC responded in November of 1989 by issuing a Notice of Inquiry soliciting public comment on the issue.70 The Notice presented statistics on such matters as the number of children present in listening audiences and the number of radio and television sets in American households, and invited further evidence supporting or refuting these findings.

The FCC received over 92,500 formal and informal responses to the Notice. Nearly 88,000 supported a twenty-four hour prohibition.71 After considering these responses, the Commission decided that the twenty-four hour ban was constitutional according to the standard established in Sable. They cited data showing that there was a reasonable risk that children were in the audience at all hours of the day and night, and judged parental control to be severely limited by the pervasiveness of the broadcast media, the lack of radio signal-blocking technology, and the virtual impossibility of monitoring program viewing on a round-the-clock basis. Therefore, the Commission concluded that only a twenty-four hour ban would effectively carry out the government's interest in shielding minors from indecent material.

When citing statistics showing that a significant number of children are present in listening audiences at all times, the FCC never defined "significant." For example, they stated that an average of nearly three-quarters of a million children listen to the radio between midnight and 6 a.m., with an average number of 716,000 children ages 12-17 in the listening audience during any quarter-hour.72 (For the purposes of broadcast indecency, the FCC defined children as persons aged 17 and under.) The Commission did not present these findings as percentages of the general population, however. Respondent KDVS noted this oversight, and determined that the percentage of 12 to 17-year olds in the audience after midnight is 3.5%, or only 0.35% of the entire population.73 The FCC still maintained that this figure, translated as 716,000 children, was significant enough to constitute a reasonable risk. No cut-off quotas were suggested to support this finding; the Commission apparently assumed that six-digit numbers would speak for themselves.

While insisting that children could potentially be in the radio audience at any time, the FCC did recognize that they may not be in the audience of a given market at a given time of day. Therefore, the Commission allowed alleged purveyors of indecency to present evidence showing that children were not in the audience during the time of the challenged broadcast. This evidence had to be shown for the entire market, not just the particular station, due to the fact that listeners switch stations frequently.74 This consolation assumes broadcasters are guilty until proven innocent, as it puts the burden of proof on the licensee to show that there is minimal risk that children are not only listening to the particular station, but in the market area audience at all.

Nevertheless, the Commission did not feel that this was an "unduly burdensome" requirement, for stations are required to insure the well-being of its young listeners. They pointed to the history of Congressional regulations of indecency to show that Congress has found that exposure to indecent material can harm children. They also noted that the increasing narrowness of the definition of obscenity has produced a corresponding expansion of what can be labelled "indecent" and therefore "protected speech." This broad range of sexually-oriented material that could be broadcast heightened the Commission's sense of duty to protect children.75

The FCC found that the unique pervasiveness of the media presented a strong case for enforcement, even independent of the child-protection rationale. The large number of radio and television sets in each household makes parental monitoring very difficult,76 and technologies such as lock-boxes are not yet available for radio.77 Instituting precautions such as rating or warning systems would not help because listeners frequently turn the dial and may miss the message.78 Moreover, there is an interest in protecting the privacy of the home from being invaded by unwelcome broadcasts, and this interest is compelling as an alternative to the child-protection basis for upholding the twenty-four hour ban.79 The Commission did not make a strong case for this last point, however, particularly as they relied on prior dissenting opinions to form a significant part of the argument. The child-protection rationale was much more extensively developed in this report than the privacy rationale.

Finally, the FCC found that a twenty-four hour ban did not infringe upon the rights of adult listeners and viewers because these listeners have access to alternative sources of indecent material, such as cable television, movies, and video- and audiocassettes.80 This analysis ignored the Supreme Court finding that free speech may not be abridged in one place with the excuse that it may be exercised elsewhere.81 Furthermore, the Commission ignored the financial costs associated with cable, movies and the like. Nonetheless, the FCC felt that the compelling interest in protecting children outweighed the rights of adult audience members.82

Following the announcement of these new standards, several stations were challenged and fined. In December of 1990, the Howard Stern Show again came under attack. The FCC found that material on the December 16, 1988 broadcast contained "explicit verbal references to sexual activities that were rude and vulgar, and that, when taken in context, were made in a pandering and titillating fashion." This program was also broadcast between 6 a.m. and 10 a.m., a time when there was a reasonable risk that children would be in the audience - therefore, this case would have been actionable under older enforcement standards. The program was labelled patently offensive and indecent, and each of the stations that broadcast it was fined $2000.83

Another $2000 fine was issued to a station which broadcast a song called Penis Envy at 6 a.m. on October 27, 1988, during the Neil Rogers show. This song "contained lewd references to the male genitals and to activities involving male genitals, all graphically portrayed in a patently offensive manner."84 Because this song was broadcast at 6 a.m., it again may have been actionable under earlier indecency standards. Apparently the FCC has had trouble finding complaints about programming aired during the suspect midnight to 6 a.m. time slot, perhaps because fewer adults are awake then; the Commission determined that more children than adults are in the listening audience during those hours.85 One may wonder how many of the 88,000 respondents favoring a twenty-four hour ban have actually listened to the radio after midnight.

Action for Children's Television v. FCC ("ACT III")
CA DC No. 88-1916  May 17, 1991

In the most recent challenge to FCC authority, the D.C. Circuit Court decided that a total ban on the broadcast of indecent material was unlawful. The D.C. Court recognized that Congress mandated the twenty-four hour ban, but noted that "it is ultimately the judiciary's task, particularly in the First Amendment context, to decide whether Congress has violated the Constitution." The Court decided that the elimination of the "safe harbor" period was not sufficiently carefully tailored to the government's interest in safeguarding minors.86

Considering the lengthy, conflict-ridden history of this subject, it is doubtful that the D.C. Court's opinion will be the last word on the issue. Congress may pass yet another set of restrictions; Senator Helms is still active in Congress. However, new technologies may allow greater parental control of radio listening. In the end, it appears that only another Supreme Court decision will provide a definitive answer, if not satisfactory solution, to the problem of the regulation of broadcast indecency.